43.

Service of Process

An action is commenced in a United States district court by
the
filing of a complaint. See Fed. R. Civ. P. 3. In an action
involving a
federal question or statute -- as opposed to diversity actions --
the
filing of the complaint tolls the statute of limitations. See West
v.
Conrail, 481 U.S. 35 (1987). Thus, it is not necessary that service
of
the summons and complaint be accomplished within the applicable
limitations period in such cases unless Congress expressly so
provides.

Rule 4(m), Fed. R. Civ. P. provides that "[i]f service of the
summons and complaint is not made upon a defendant within 120 days
after
the filing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that service be
effected within a specified period; provided that if the plaintiff
shows
good cause for the failure, the court shall extend the time for
service
for an appropriate period." The 1993 Advisory Committee Note for
Fed. R.
Civ. P. 4(m) comments that, even if good cause for failure to
timely
effectuate service is not shown, relief from application of the
rule
"may be justified, for example, if the applicable statute of
limitations
would bar the refiled action." With regard to relief from the
application of these time requirements upon a showing of good
cause, the
1993 Advisory Committee Note also refers to the provisions of Fed.
R.
Civ. P. 4(i)(3), "which provides for extensions if necessary to
correct
oversights in compliance with the requirements of multiple service
in
actions against the United States or its officers, agencies, and
corporations." But see Tuke v. United States, 76 F.3d 155, 158 (7th
Cir.
1996) (Fed. R. Civ. P. 4(i)(3) deals in cases in which plaintiff
must
serve federal officers in addition to the USA and the Attorney
General).
In cases under the Suits in Admiralty Act, note that the SAA
requirement
for "forthwith" service does not override the 120-day limit of Rule
4.
Henderson v. United States, 517 U.S. 654 (1996).